march 29, source :http://arkansasnews.com

LITTLE ROCK — A man sentenced to die for a 1997 double homicide in Little River County did not receive a fair trial because prosecutors withheld crucial evidence from the defense, an attorney for the man argued today before the state Supreme Court.

An attorney for the state said the outcome of the case would have been the same even if the state had provided the evidence.

The court heard oral arguments but did not immediately issue a ruling in an appeal by Timothy Lamont Howard, 42, who was convicted of two counts of capital murder in the deaths of Brian and Shanon Day. The three were friends and were all involved in using and selling illegal drugs, mainly methamphetamine, according to court filings.

Brian Day’s body was found in a U-Haul trailer in Ogden on Dec. 13, 1997, and his wife’s body was found in the closet of the couple’s home in Ashdown later the same day.

At Howard’s trial in December 1999, jurors heard a forensics expert testify that boots found 2 1/2 miles from the murder scene contained hairs that were a likely match with Howard, and that blood on the boots was a likely match with Brian Day.

Howard’s trial lawyer argued that Howard was in Texarkana when the murders occurred and that the boots had been used to frame Howard.

The state Supreme Court upheld Howard’s conviction in 2002, but federal public defender Scott Braden argued before the high court today that it should order a new trial, or in the alternative send the case back to Little River County Circuit Court for a new evidentiary hearing, because the defense has learned that the state withheld evidence that could have changed the outcome of the trial.

That evidence includes notes showing that errors occurred during the testing of DNA from the boots and that samples may have been contaminated. Braden said the state had those notes but did not provide them to the defense before the trial.

“There is no question here that there is a reasonable probability that the jury would have done something different” if the defense had been able to use those notes to try to impeach the DNA evidence, Braden argued.

Assistant Attorney General Lauren Heil argued that other evidence established that the boots were Howard’s, including testimony by Howard’s ex-wife that the boots looked like his.

Justice Robert Brown asked Heil if she thought that testimony was equivalent to testimony of a DNA match. She said she believed it was, in combination with Howard’s defense that the boots were used to frame him — a defense that she said required conceding that the boots were his.

Braden also argued that the state did not provide the defense with a police report detailing an incident of abuse that Howard suffered as a child. He said the defense could have used the report as evidence of Howard’s violent childhood during the penalty phase of the trial, and the jury could have considered Howard’s past a mitigating factor that weighed against imposing the death penalty.

Heil argued that Howard could have brought up the incident himself at his trial, but he did not.

“The defendant has an obligation to raise things within his own unique knowledge,” she said.

Heil also argued that the defense did not assert its claims in a timely manner, a charge that Braden denied.

The Supreme Court split on Howard’s previous appeal in 2002, ruling 4-3 to uphold his conviction. Only two of the justices who took part in that decision are still on the court: Chief Justice Jim Hannah and Justice Robert Brown, both of whom said then in dissenting opinions they would have overturned the conviction because of problems with the state’s case.

Justice Donald Corbin recused from hearing both appeals. Filling in for him today as a special appointed justice was Little Rock lawyer Ronald Hope.

Name	Date	Duration
CR 00-803 Timothy Lamont Howard v. State of Arkansas, from Little River Circuit	Mar 29, 2012	00h 53m			Oral Argument

Case Caption:
TIMOTHY LAMONT HOWARD
V
STATE OF ARKANSAS

Timothy Lamont Howard (ACTIVE) Appellant’s counsel:
Dorcy Kyle Corbin – LEAD
Janice Wegener Vaughn – LEAD
Mac John Carder Jr – LEAD
Julie Brain – LEAD
Scott W. Braden – LEAD
Joshua R. Lee – LEAD
Conviction Information:
Convicted of: Capital Murder
Sentence: 000-00-000 (yyy-mm-ddd)
Sentence Type DEATH

State Of Arkansas (ACTIVE) Appellee’s counsel:
Attorney General – LEAD

Trial Court: Little River
Little River Circuit
Trial Court Number: CR-97-105
Trial Judge: Charles A. Yeargan

——- EVENT LISTING ——–
03/29/2012 Case Submitted – Orally Argued

03/29/2012 Supreme Court Votesheet Issued

03/29/2012 Supreme Court Oral Argument Issued for
REGULAR DOCKET scheduled for 03/29/12 at A.M. – ORAL Argument.
2/27/12 – Scott Braden and Josh Lee confirmed
2/27/12 – Lauren Heil confirmed

No. 02-6564	Status:	DECIDED
	Title:	Timothy Lamont Howard, Petitioner
		v.
		Arkansas
Docketed:	Lower Ct:	Supreme Court of Arkansas
September 26, 2002		(CR00-803)

~~Date~~~~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Sep 25 2002	Petition for writ of certiorari and motion for leave to proceed in
	forma pauperis filed. (Response due October 26, 2002)
Oct 28 2002	Brief of respondent Arkansas in opposition filed.
Nov 7 2002	DISTRIBUTED for Conference of November 27, 2002
Dec 2 2002	Petition DENIED.
	********************************************************

---

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Jeffrey M. Rosenzweig	300 Spring Street	5013725247
	Suite 310
	Little Rock, AR 72201
Party name: Timothy L. Howard
Attorneys for Respondent:
Lauren E. Heil	AG’s Ofc., 200 Tower Building	5016821309
	323 Center Street
	Little Rock, AR 72201
Party name: Arkansas